10/21/15

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Matt Evola*

Concerns about the protection of rights and liberties in the face of threats to national security have come to the forefront in the years after the September 11th terrorist attacks. As external restraints provided by Congress and the courts have arguably been ineffective1, scholarship has turned toward protections offered by internal checks on the executive branch.2 One such internal check on the various executive agencies, the inspector general (“IG”) office, has garnered increased visibility in the wake of new statutory mandates to monitor rights violations.3 IG offices operate at numerous executive agencies at different levels of government. They represent an effort to gain greater oversight and accountability over governmental agencies and operations, and range from municipal IGs to major executive agency IGs. These IGs are tasked with preventing fraud, waste, and wrongdoing, including investigating criminal violations.4

Professor Shirin Sinnar’s article, Protecting Rights from Within? Inspectors General and National Security Oversight, explores the successes and shortcomings of five IG investigations before ultimately concluding that IGs should be modestly strengthened to combat potential violations of civil liberties made in the name of national security.5 Her article posits that IGs are necessary internal checks on the executive branch because Congress and the courts have abdicated their role in the national security realm.6 However, IGs are most likely to be successful when backed by Congressional investigations,7 and thus, IG investigations are actually dependent on courts and Congress not abdicating their roles.

Often, the biggest obstacle for the effective protection of civil rights and liberties in the context of national security is secrecy. Few people have the necessary clearance to know about potential rights violations. IGs have unique access to executive agencies and can help combat this issue.8 However, tasking IGs with the job of addressing secrecy concerns threatens the very relationship that gives IGs their unique access. Despite the inherent risks, two of Sinnar’s proposals to strengthen IGs—institutionalizing rights and liberties in IG roles and addressing the secrecy problem—could be taken further to capitalize on IGs as the best source of information from executive agencies.

Institutionalizing Rights and Liberties in IG Roles

Sinnar first suggests that Congress should “institutionalize the civil rights and civil liberties monitoring role of national security IGs across the board.”9 Currently, very few IGs are statutorily required to investigate potential rights and liberties violations. Congress, however, could require all national security agency IGs to monitor this area. The question that Sinnar does not address is whether the relationship between IGs and agencies could withstand this change. While this reform seems modest, any change in the balance between access and independence could have important consequences. The potential benefits could outweigh the costs—but the costs need to be addressed.

IG offices were initially created to address concerns of fraud, abuse, waste, and mismanagement.10 When an IG is investigating these topics, it is not hard to imagine an agency cooperating to some extent with the investigation. The result of such an investigation might uncover ways to make the agency more efficient with little or no downside. However, when an investigation into potential violations of rights and liberties occurs, agencies could conceivably view such investigations in a very different light. Agency leadership may legitimately believe a policy is both legal and justified, while an IG might find the opposite. While neither may be inherently correct or incorrect, saving money is one thing and challenging an agencies policy—and potentially uncovering criminal violations—is another. The former might get some agency cooperation, but the latter is unlikely to get much (which is exactly what happened, for example, with the IG investigation into the rendition of Maher Arar to Syria).11 Additionally, focusing on rights violations also reduces an IG’s ability to investigate issues of abuse and waste. Thus, there is a strong argument for caution when it comes to modifying the institutional roles of IG offices.

Acknowledging that risk, there has been at least some success where IGs have been given the institutional role of monitoring civil rights and liberties. IGs who have investigated rights violations have rarely lost all agency access and have experienced some positive outcomes.12 Accordingly, it is equally worthwhile to consider an even stronger alternative to Sinnar’s proposal. For example, to ensure IG offices are staffed by people who could focus on the institutional role of protecting rights and liberties, IGs could create separate groups to focus on civil rights and liberties. Currently, for example, the CIA Office of Inspector General is split into groups focused on audits, inspections, and investigations.13 Congress could mandate the creation of separate groups focused exclusively on rights and liberties investigations that could further strengthen IG offices’ ability to conduct thorough investigations in this arena.

Ultimately, people tend to take their roles within an organization seriously.14 IG office investigators are more likely to adequately investigate potential rights violations if they believe that to be their core responsibility. Such staff members are also more likely to focus on, and dedicate significant attention to, rights and liberties if that is the entirety of their job. Explicit statutory mandates supported by active congressional involvement could lead to stronger critiques in investigation reports and, potentially, substantial reforms preventing future violations.

Addressing the Secrecy Problem

Sinnar also proposes addressing the secrecy problem, suggesting Congress could amend the Inspector General Act15 to require all IG reports to be made publicly available, with appropriate exceptions for properly classified information.16 There is at least one potential issue with this idea, as the proposal could be rendered useless if the exception were to swallow the rule. It seems likely that such a requirement would lead to overclassification of information (and increased claims of privilege).17 In fact, this problem has already occurred in the Arar rendition report which remains heavily redacted despite the fact that the alleged justification for the redactions—ongoing civil litigation—has ended.18

Sinnar also suggests requiring that IGs notify Congress when they disagree with major classification decisions.19 Addressing the secrecy problem would be a step in the right direction, but it would be problematic if no benefit were realized due to increased classification, redaction, and claims of privilege. Accordingly, Sinnar’s companion proposal to require IGs to report disagreements with major classification decisions is important. To take that proposal even farther, IGs should be required to audit agencies regarding classification.20 This would ensure not only that information from IG investigations is made public, but also that agencies could not nullify IG recommendations by merely classifying information as confidential.

In sum, Sinnar’s article is somewhat misleading. IGs are not exactly protecting rights from within the executive branch, but rather protecting rights through access to executive branch agencies, often combined with strong backing from Congress and the public. The ability to straddle the line between authority and access is a dangerous game where veering too far in either direction could have dramatic negative results. Thus, Sinnar’s modest proposals for strengthening IGs reflect prudent caution. However, more robust options should be considered. Through stronger IG offices, Congress will have greater access and more information regarding executive agencies. Absent such access and information Congress cannot act as the external check on executive power that the Constitution envisioned. Congress should ensure it has the tools to discover and investigate violations to prevent the wholesale abdication of its duty to protect rights and liberties from the creeping encroachment of national security justifications.

Sinnar concludes by stating, “IGs offer an important and underappreciated source of protection for individual rights, but an incomplete antidote to judicial or congressional inaction.”21 This is incorrect. In reality, IGs offer no protection of individual rights at all. IGs provide no remedies, they hold no wrongdoers accountable, they don’t revise agency rules, and they don’t provide relief for victims.22 Instead, IGs produce information. They use their unique access to executive agencies to provide Congress and the broader public with information on what happens when national security is on the line. It is up to Congress and the public at large to act.